New Supreme Court test coming on DACA?

The Trump Administration, frustrated that lower courts have blocked it from ending a six-year-old program protecting young undocumented immigrants from deportation and that the Supreme Court has so far not come to its aid, has now laid out a new plan that could put the issue back before the Justices in a matter of weeks.  The program at issue is known as DACA, for Deferred Action for Childhood Arrivals.

The plan, outlined in a filing late Friday night in a federal trial court in Brownsville, Texas, has three parts.  First was a suggestion of a slimmed-down review by the judge of the legality of the DACA program – a process would avoid factual conflicts and steer clear of a constitutional question but would very likely lead to a ruling that DACA would be struck down – as the Administration wants.

Second was a plea to keep any court order requiring a shutdown of the program narrow in scope but sufficient to set up a conflict among lower federal courts on the legal fate of DACA.

And third was a request that, if such an order is issued, it be put on hold for two weeks so that the Administration could then be in a position to go to the Supreme Court to get prompt action there that the Administration hopes would lead to DACA’s end.

The proposal does not set out a specific timetable, but the Texas judge handling this particular DACA case – U.S. District Judge Andrew S. Hanen – has scheduled a hearing for July 17 in Brownsville on the basic question of whether he will issue an order to end the deportation-deferral program as beyond the power of the federal government.   (DACA, originated by the Obama Administration six years ago this month, has protected from deportation nearly 800,000 young people who have lived in the U.S. since childhood without legal permission to do so.)

If Judge Hanen rules promptly in the way that the government strongly implied that he should, the Administration could be in a position to take the dispute to the Supreme Court even before the Justices open a new term in early October.   Even while in recess, the Justices would be in a position to act.

The legal maneuvering over DACA’s future has reached six federal courts across the country, and two of those trial judges have ruled broadly against the Administration, ordering it to keep the program going despite the government plan to end it as of last March 5.   A third trial judge has ruled even more broadly against the Administration, but has not yet put that decision into effect, awaiting further evidence about the government’s reasoning for shutting down DACA.

The particular case pending in the south Texas court was filed by seven states, led by the state of Texas, seeking to have DACA struck down as unconstitutional, as invalid under federal immigration law, and as procedurally flawed.

The Administration has been sued in all of the cases, and it has defended in all of them its decision to shut down DACA.   Its filing late Friday night in the Texas case marked its first action in that case, strongly supporting the challenge to DACA.

While all of this court activity has been unfolding across the nation, Congress has been tied up in deep controversy over DACA’s future, with many lawmakers favoring some protection for those individuals in the program but with neither House nor Senate able, so far, to come up with new legislation.   DACA’s fate is linked in congressional debates to President Trump’s desire for funds to build a wall along the border with Mexico.

In responding to the Texas challenge to DACA, Administration lawyers fully supported the challenge, arguing that the Obama Administration had no authority to put DACA in place because it runs counter to federal immigration laws.
In the new filing, the government brief urged Judge Hanen to base his coming decision on the fate of DACA only on the specific legal question of its validity under immigration statutes.  The judge, it said, need not address two other questions that the challengers there have raised: that DACA is unconstitutional because it exceeds the President’s constitutional power in carrying out federal statutes, and that DACA was not created by the required procedure.

Arguing for a less ambitious ruling, the government filing said the constitutional question should be avoided as unnecessary, and the procedural question should be avoided because there would have to be a sorting out of facts before it could be decided.   The issue of DACA’s legality under federal immigration law is an uncluttered question of law, the filing noted.

The new document came close to arguing that, because Judge Hanen had earlier ruled against the Obama Administration on related deportation-deferral policy, because a federal appeals court had upheld that ruling, and because the Supreme Court refused (by a tie 4-to-4 vote) to review the order, the new challengers almost certainly would be entitled to an order against DACA in its original six-year-old version.

Because the new document noted that the current Justice Department is strongly opposed to federal trial judges who issue nationwide orders against the government, going well beyond the parties involved in cases before them, it urged Judge Hanen not to issue a broad, nationwide order against DACA.

If the judge is satisfied that at least one of the challenging states has a legal stake in the future of DACA – for example, because it would have to pay for a program to provide driver’s licenses for DACA-protected individuals – then the judge would be free to go ahead and grant the request to order a shutdown of DACA as it applied in that narrow but specific context.

An order against DACA in any form, narrow or broad, would immediately set up a conflict with the nationwide orders of other courts to keep DACA intact, the new filing said.  That would put the government under conflicting court orders, and that would then give it the premise for taking the issue on to the Supreme Court.   In the meantime, it told the judge, government lawyers are trying in two separate federal appeals courts to get them to undo the nationwide orders protecting the DACA program.

If Judge Hanen were to rule promptly in the Texas case, the Administration would not even have to await the outcome of those existing appeals before it could go to the Supreme Court for relief.

Earlier this year, the Administration attempted a swift appeal to the Supreme Court in an attempt to challenge one of the nationwide orders protecting DACA, but the Justices turned down that plea, saying they assumed the appeals courts would act with dispatch.

One appeals court held a hearing on May 15, and is now pondering a decision on DACA’s fate.   The controversy is pending in another federal appeals court, but that tribunal has not yet set a hearing date.

Thus, the chance for the swiftest action of the kind the Administration wants could be in Judge Hanen’s court in Texas.